Monthly Archives: July 2015

Motor vehicle accident compelled statement to admission of driving held inadmissible as grounds for arrest or demand

I read a case out of the Ontario Superior Court of Justice in 2013, but in hindsight didn’t really give it the attention it deserved (R. v. Treliving 2013 ONSC 3368).  I was, instead, focused on a ground for appeal on the issue of whether or not the police understand that persons entitled to the right to counsel have the right to communicate with a third person for purposes of accessing counsel, and I missed the issue which is the subject of this post.

Although a decision at the Provincial Court level, R. v. Primeau 2015 SKPC 104 has examined whether or not an admission of driving made by the driver in response to police investigating a motor vehicle accident could be admissible on the voir dire as grounds for arrest or demand? In reading this case, it prompted me to recall the Treliving case and so I did further inquiries into this subject area.

In Primeau, officers were dispatched to a motor vehicle accident and the complainant believed the driver of the other vehicle was intoxicated. The complainant told one of the officers that a white truck backed out of the driveway into his van, which was parked in the street. He gave a one sentence statement to the effect that “It was a female driving the truck.” The complainant pointed to the residence from where the truck had left. An officer looked and saw that the truck had returned. During testimony, there was some discrepancy as to whether the two officers entered the residence at all, whether they entered upon being invited inside, etc., or who asked who had been driving the white truck (“Who was the female driving the white truck that hit the van?”).

One officer testified that Ms. Primeau came to the door to see what was happening and “she indicated that she was the one driving the truck.” He then admitted, “We asked the residents who was driving the vehicle”. He believed both he and the other officer asked the question. Then he said “I asked a general question of the residents of the house, ‘Who was driving the vehicle?’ She voluntarily came forward and she answered she was.” There were also issues with the “preceding three hours” requirement for the breath demand as neither officer could testify accurately to the time of the accident (which, in turn, would be the time of driving), and reasonable grounds to believe for a breath demand versus reasonable suspicion for an ASD demand, but I won’t get into those separate issues in this post.

When there is a motor vehicle accident, we have a duty to investigate and complete an accident report where the requirements are met. In Saskatchewan, police have a duty to complete an accident report pursuant to section 253 of the Traffic Safety Act (s. 98 in Nova Scotia, s. 130-131 in New Brunswick, s. 232 in PEI, and so on). In situations such as these, it requires the driver or the person in charge of the vehicle to report to a police officer, and it further requires the officer receiving the “report” (information) to make a written report. So, it contemplates two mandatory reports — one by the motorist (to give the information), and one by the police officer. Therefore, the question to ponder is, “Can statements or admissions made while participating in the mandatory making of the report (statutory requirement) be used for any purposes in the criminal trial for grounds for a demand or an arrest?” Narrowly focused, due to the provincial legislation, answers to any questions asked by the police where there has been a collision are compelled answers, so can they be used to establish who was driving in criminal precedings?

In Primeau, the Judge ruled that the accused’s statement that she was the driver was inadmissible on the voir dire. Police were investigating the accident under the Traffic Safety Act. The officers did not indicate they were investigating an offence under the Criminal Code until they arrested the accused and after she had given the statement she was compelled to give under provincial legislation. There being no grounds to believe she was driving the truck, there were no grounds to arrest her or to make the breath demand.

Other courts have come to the same conclusion: in R. v. Scharf, 2013 SKQB 327, police were investigating a motor vehicle accident. The accused was sitting in the back seat of another vehicle. In response to a question from the investigating officer, the accused admitted he was driving the vehicle involved in the incident. Mr. Justice Danyluk stated at paragraph 43:

Here, it is clear from the evidence that while [the officer] said he was dispatched to a motor vehicle accident and was initially investigating same under provincial law, his evidence also revealed that when he received the 911 call dispatch, a “possible impaired driver” was involved. So the officer knew, or ought to have known, that he was simultaneously pursuing an accident investigation under provincial law and a criminal investigation under the Criminal Code.

In R. v. White, [1999] 2 SCR 417, Mr. Justice Iacobucci said at paragraph 80:

…as a practical matter, it will be very important for the police officer who takes an accident report while simultaneously investigating a crime to delineate clearly for the declarant the start and end points of the accident report. For example, it may be useful for police to tell the driver that they will postpone the taking of an accident report until after they have questioned, or attempted to question, the driver. Alternatively… police may wish to tell the driver that they intend to secure the details of the accident report from sources other than the driver, thus terminating the statutory duty to report.

Other decisions, such as R. v. Soules, 2011 ONCA 429, R. v. Powers, 2006 BCCA 454, 213 C.C.C. (3d) 351, R. v. Germain 2012 ONSC 3928, and R. v. By, 2015 SKQB 86, have held that statutorily compelled statements are inadmissible in the trial of an accused person, even for the limited purpose of establishing grounds to make a breath demand. Evidence, however, by the officer that he detected the odour of alcohol on the driver’s breath may be admissible for the purpose of establishing the grounds for having made a s. 254(2) demand (e.g. Germain).

What does this all mean in this context?  Follow the directions of Mr. Justice Iacobucci in White, be aware of your (officer) own “observations”, and look to other sources of information (witnesses, etc.) to establish grounds of who was driving because it would seem alot of courts have decided that an admission of driving in response to us investigating a motor vehicle accident are compelled statements and inadmissible even as grounds for arrest or demand.

As an afterthought, do not get this specific issue confused with questioning a driver in the Orbanski/Elias context (see post dated June 3, 2013) where the evidence is admissible for the limited purpose of establishing reasonable grounds for a demand. It differs because the questioning by police in those cases does not involve compelled answers. In each of them, the motorist can refuse to answer if he or she chooses; they are not forcefully enlisted in aid of their own prosecution. For example, in the case of a breath demand made by a police officer, pursuant to s. 254(5) of the Criminal Code the motorist is legally obligated to comply with the demand; nevertheless, s. 7 of the Charter continues to furnish him or her with the right to choose whether or not to speak with the police – a choice statutory compulsion clearly eradicates.

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Filed under Impaired Driving, Section 10 Charter

With nice summer weather, comes increased motorist activity, and extra consideration of 10(a)(b) of the Charter

R. v. Evans 2015 ONCJ 305 – although this case happened in December of 2011, the circumstances surrounding it should serve as a reminder to us at this time of the year (summer) due to the “more than normal” traffic stops likely to be occurring at this time of the year. The defendant was directed to stop his vehicle as part of a roving sobriety check-stop. Soon after approaching the defendant and beginning to interact with him at the roadside, it became rather apparent to the police officer that stopped him that the defendant’s ability to operate a motor vehicle was impaired by alcohol. The defendant was therefore arrested for that offence. Once at the police division, the defendant ultimately provided breath samples that revealed his blood alcohol concentration to be well in excess of the legal limit. The facts surrounding the case itself are all too familiar and not really the purpose of this post. What the case does illustrate is a reminder to officers of Section 10(a) and 10(b) of the Charter and motorists.

Justice J. Stribopoulos J. in Evans examined the requirement of these Charter principles at roadside. To reiterate, Section 10 of the Charter guarantees certain rights “on arrest or detention”, including: “(a) to be informed promptly of the reasons therefor” and “(b) to retain and instruct counsel without delay and to be informed of that right.” It is well established that a driver who stops his or her vehicle when signalled to do so by a police officer is “detained” (e.g. R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3 at paras. 30-31 [Orbanski & Elias]; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Clayton, [2007] 2 S.C.R. 725 at para. 66 (S.C.C.), per Binnie J., concurring). In Orbanski & Elias, the Supreme Court of Canada held that the right to counsel does not apply at the roadside when the police are conducting road-safety inquiries, for example, questioning a driver about alcohol consumption or requesting that the driver participate in sobriety tests. According to the Court, the right to counsel is implicitly overridden in such circumstances by the “operating requirements” (Orbanski & Elias, supra, at paras. 37, 39) of the “interlocking scheme of federal and provincial legislation” (same, at para. 27) governing motor vehicle travel (same, at para. 43). In other words, the right is overridden because of the impracticality of implementing it at the roadside.

Of course, the override of the right to counsel at the roadside during detentions motivated by traffic safety concerns has its limits. In upholding the override as a reasonable limit under section 1 of the Charter, the Supreme Court in Orbanski & Elias noted that any responses given by the motorist to police questions or the results of any roadside sobriety tests can only be used as an investigative tool to confirm or refute the officer’s suspicion that the driver might be impaired; it cannot be used as direct evidence to incriminate the driver (same, at para. 58). Further, as the Supreme Court explained in Orbanski & Elias, “the limitation on the right to counsel has strict temporal limits — there is no question that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of the Charter right to counsel” (same, at paras. 37, 39). Therefore, if the police investigation of a suspected impaired driver culminates in an arrest, the justification for the override falls away and the person arrested must then be informed of his or her right to counsel (we also have to be aware that the override does not exist when delays are present in other circumstances, such as having to await the arrival of an ASD device, for example – see R. v. George [2004] O.J. No. 3287 at paras. 50-51 (C.A.)).

It is important to note that there is no comparable override at the roadside of the right found in section 10(a) of the Charter. This is because there is simply nothing impractical about the police telling a driver whom they stop why they have been detained. As Charron J. observed on behalf of the Court in Orbanski & Elias: “I suspect every motorist would fully expect ‘to be informed promptly of the reasons’ why he or she is being stopped” (same, at para. 31). Section 10(a) of the Charter requires police to tell those who they detain in “clear and simple language” (R. v. Mann, [2004] 3 S.C.R. 59 at para. 21) of the reason(s) why.

With respect to when a detained or arrested individual must be apprised of the information to which they are entitled under sections 10(a) and 10(b), the law is clear and well established. Section 10(a) provides that the person detained must be informed “promptly” of the reason(s) for their detention. According to many courts, for example the Court of Appeal for Ontario, “promptly” properly understood in the context of section 10(a), means “immediately” (R. v. Kelly (1985), 17 C.C.C. (3d) 419 at 424 (Ont. C.A.); R. v. Nguyen, 2008 ONCA 49 at paras. 16-22).

The guarantee would seem to serve slightly different purposes for those who have been detained rather than arrested. For many, being detained by police will occasion a fair bit of anxiety; compliance with the guarantee therefore goes some distance towards lessening the psychological impact of detention. In addition, depending on the circumstances, the person detained by the police may be in a position of legal jeopardy. In such situations, knowing why one has been detained will undoubtedly assist the affected individual to make a more informed decision in terms of how to respond. For example, a detained motorist who knows that they are suspected of impaired driving may decide to refrain from making an incriminating admission or participating in physical sobriety tests. The only permissible delay, the Supreme Court has explained, is where the police need time to obtain control over a potentially dangerous or volatile situation out of concern for police or public safety (see R. v. Strachan, [1988] 2 S.C.R. 980 at 998-999; R. v. Debot, [1989] 2 S.C.R. 1140 at 1163-64, per Wilson J; R. v. Suberu, [2009] 2 S.C.R. 460 at para. 42).

In Evans, the officer testified that before he had an opportunity to say anything to Mr. Evans after approaching his car, Mr. Evans looked up at him and said “yes”. At this point, in order to comply with section 10(a) of the Charter, Justice J. Stribopoulos J. said the officer should have told Mr. Evans: “I stopped you because I think you may have been drinking and I want to make sure you are okay to drive” or words to that effect. Instead, he proceeded to question Mr. Evans about where he was coming from. This led Mr. Evans to confirm that he was coming from “the bar,” a response that the officer testified also served to reveal that Mr. Evans’ speech was extremely slurred. It was only after receiving Mr. Evans’ incriminating response that the officer told him that he was part of a RIDE spot-check and that he was checking drivers for alcohol consumption.

The Justice said that given that the officer had seen Mr. Evans drive off in his car after leaving a bar, combined with the driving he had observed (i.e. Mr. Evans’ sudden acceleration, his failure to signal lane changes or turns, and the fact that he seemed to be speeding), that he actually suspected that Mr. Evans had been drinking and might be an impaired driver. Given all this, the Justice ruled that the officer violated Mr. Evans’ section 10(a) Charter right. In addition, once the driver was arrested, the arresting officer did not advise the driver of his 10(b) Charter rights; another officer did so, but not until roughly 14 minutes after the arrest. The arresting officer testified that Mr. Evans was cooperative throughout his dealings with him. As a result, there was simply nothing about the circumstances to justify the fourteen-minute delay in apprising Mr. Evans of his right to counsel said the Justice. The delay therefore occasioned a violation of Mr. Evans’ section 10(b) Charter rights as well.

Accordingly, pursuant to section 24(2) of the Charter, all of the evidence proffered by the Crown relating to the observations made by the three officers after the violation of Mr. Evans’ section 10(a) right was ordered excluded (253(1)(b) charge). With respect to the charge of impaired driving (253(1)(a) charge), the evidence that remained was the officer’s observations of Mr. Evans leaving a bar late on a Friday night, accelerating quickly once he entered onto the roadway, failing to signal a lane change and some turns, speeding, and having red flush cheeks and watery eyes. Although this collection of evidence would be sufficient to justify the making of an approved screening device demand, according to the Justice, it fell far short of proving a charge of impaired driving beyond a reasonable doubt. Accordingly, that charge was also dismissed.

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Filed under Section 10 Charter